Constitutional Class Action against Closed Work Permits: The Fundamental Right to Change Employers

30-min Youtube video – Why challenging closed permits in court

LAST UPDATE: September 14, 2023 – Application for autorisation submitted to the Quebec Superior Court!

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In Canada, individuals with foreign worker legal status, often employed within a private household or on a farm, face one or various federal measures that restrict the right to resign and change employers – such as employer(s)-specific work permits or standard employer-tying work contracts.

If the relationship ends with the employer-sponsor (or group of employers-sponsors), the individual’s right to earn a living in Canada is automatically revoked*; employer-tied workers are, therefore, extremely reluctant to resign or do anything that might jeopardize their employment relationship – including refusing unsafe work or complain and seek justice in case of a right violation.

Since they face such major state sanction if they are fired or resign (and additional risks of loosing access to another work permit or to permanent status in the future), employer-tied workers end up, according to the North American jurisprudence, in a de facto condition of servitude.

For the society as a whole, foreign worker admission programs that integrate an employer-tying measure result in the consolidation of an unfree labour supply and employment regime – characterized, by a reduced applicability of human rights, employment, labour, immigration, tax and anti-trust legislations – a reduced applicability of the Rule of law.

More specifically, social sciences confirm that employer-tied workers experience a restricted freedom of movement and capacity to make fundamental choices – such as choosing one’s place of residence or with whom to share it. They face barriers in accessing assistance such as community support, worker unions, and health services. Their capacity to exercise rights and access justice is restricted. They also face higher risks of financial abuse, wage theft and debt bondage, as well as higher risks of unsafe work and living conditions, work-related health issues, accidents, illnesses, and death, higher risks of discriminatory, psychological, physical, or sexual harassment, assault, and rape – in addition to higher risks of falling into undocumented work, irregular immigration status, and as victim of human trafficking.

While the unique vulnerability to human right violations for employer-tied migrants has systematically been acknowledged during the last decades by various U.N. agencies and human rights NGOs such as Amnesty International and Human Rights Watch, the legality of work permits restricted to specific employers was challenged in court for the first time only in 2006. In their unanimous decision, the constitutional justices concluded that tied permits constitute an unjustifiable and thus illegal violation of fundamental rights:

The … worker … is prohibited from working for another employer (…). … [H]uman dignity is not satisfied. … The right to liberty, for its part, is violated. … [T]he ‘change of employer procedure’ … cannot negate this violation (…). … [T]he restrictive arrangement has created a modern form of slavery.

 

Despite evidence of their devastating impact on workers’ rights, acknowledged also by Canadian tribunals, rights commissions, and parliamentary committees, the Canadian government refuses to end employer-tying measures – and in particular to replace restricted work authorizations with open work permit upon arrival for all. Recently, a UN Special rapporteur confirmed that Canada’s closed work permit system constitutes a “breeding ground” for contemporary forms of slavery.

In this context, the RHFW is working to challenge the legal validity of employer-tying measures – on the basis that they restrict workers’ constitutional rights to liberty, security of the person and life, access to justice, and not to be discriminated on the basis of the country of origin – but cannot be justified in a free and democratic society.

In December 2021, a RHFW’s request for initial funding was granted by the Canadian Court Challenge Program and, since then, the association has been working to initiate proceedings, while developing a sustainable financial strategy ensuring the success of our action.

This strategic litigation case is a highly significant one, both historically and globally. Canada and the world’s development are increasingly associated with international labour (im)migration schemes. With the abolition of such archaic measures as the tying of a worker to a specific employer or group of employers, the success of this project will minimise future large-scale state violations of the fondamental rights of (im)migrants and families and, thus, minimize the unfree worker underclasses currently abused within our communities and societies.

For more information, see the 30-min presentation below, or contact us at info@dtmf-rhfw.org.

*In some cases, the right to stay is also immediately revoked; in the other cases, the search for a new employer-sponsor is temporarily authorized, but during this process, the worker will be at high risk of irregular employment, loss of access to permanent status, loss of legal status, human trafficking, deportation, and/or debt bondage.